The challenge of prosecuting terror suspects

An Abuja-based legal practitioner Iheanyi Maraizu, who is the Principal Counsel at Iheanyi Maraizu and Co, examines how the laws make prosecuting terror suspects difficult.

On Tuesday January 8, 2013, The Nation wrote an Editorial wherein it expressed serious concern over the inability of the Federal Government to prosecute those arrested in connection with the Boko Haram crises ravaging the northem parts of Nigeria and threatening the unity and corporate existence of Nigeria.

According to the editorial, the excuse being given by the Federal Government for its inability to prosecute the suspects and curtail the menace is that extant laws are inadequate to deal with the situation.

With respect to the Federal Government and the office of the Attorney-General of the federation, I dare say that nothing can be farther from the truth.

In my humble view, it is not correct to say that there is no law under which this criminal gang can be prosecuted as the Economic and Financial Crimes Commision (Establishment) Act No 5 of 2002 expressly outlaws terrorism and makes it a punishable offence. For the avoidance of doubt, it is apposite to reproduce Section 14 of the said Act, which deals with offences relating to terrorism.

Section 14 (1) says: A person who wilfully provides or collects by any means, directly or indirectly, any money by any other person with intent that the money shall be used or is in the knowledge that the money shall be used for any act of terrorism, commits an offence under this Act and is liable on conviction to imprisonment for life.

Section 14 (2): Any person who commits or attempts to commit a terrorist act or particapates in or facilitates the commission of a terrorist act, commits an offence under this Act and is liable on conviction to imprisonment for life.

Section 14 (3): Any person who makes funds, financial assets or economic resources or financial or other related services available for use of any other person to commit or attempt to commit, facilitate or participate in the commission of a terrorist act is liable on conviction to imprisonment for life.

In Section 40 of the Act, terrorism is defined as follows:

a.Any act which is a violation of the criminal code or the penel Code and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to any person, any number or group of persons or causes or may cause damage to public property, natural resources, enviromental or cultural heritage and is calculated or intended to –

I.Intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act or to adopt or abandon a particular standpoint, or to act according to certain principles, or

II.Disrupt any pubic service, the delivery of any essential service to the public or to create a public emergency, or

III.Create general insurrection in a state; any promotion, sponsorship of, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organisation or procurement of any person, with the intent to commit any act referred to in paragraph (a) (I) (II) And (III)

From the foregoing, it can be clearly seen that what the Federal Government lacks is not the law but the will to prosecute the suspects.

The doctrine of necessity

It is pertinent to note that the law recognises that a situation may arise in which law and order may break down and laws to deal with the situation are either inadequate or nonexistent. In such a situation offenders cannot be held in custody until a law is enacted. Any law enacted in this circumstance will have retroactive effect and this will be absolutely unacceptable in a democratic society. Indeed as rightly pointed out by the editorial under reference, retroactive laws are unconstitutional and therefore null and void.

However, despite the complication that may arise as a result of inadequate or nonexistent laws the situation is not helpless as the doctrine of necessity is always resorted to take care of the lacuna.

Simply put, the doctrine is to the effect that necessitas non habet legem ie necessity knows no law. According to Osborns Concise Law Dictionary by John Burke, the invasion of the private rights of others may possibly be jusstified and defended on the grounds of necessity.

There are other dimensions to the doctine of necessity. These include necessitas facit licitum quod alias non est licitum (Necessity makes that lawful which other otherwise is not lawful). necessitas sub lege non continetur quia quod alias non est licitum necessitas facit licitum (Necessity is not restrained by law since what otherwise is not lawful necessity makes lawful). (See generally the English case of Cresswell VS Sirl (1948) IKB 241)

How do the above maxims apply to the dangerous situation in which we find ourselves in Nigeria. It applies to us because the federal Government can invoke the docrine of necessity to deal ruthlessly with the Boko Haram sect. This is with a view to stamping out the evil sect completely. If it means shooting them at sight let this be done. Their lives are not more precious than those of millions of innocent Nigerians whom they have despatched to the great beyond.

It is in fact in inconsonance with the doctrine of necessity that Section 305(1) of the Consttution of the Federal Republic of Nigeria(1999 as amended in 2011)empowers the President to declare a state of emergency in the federation or any part there of.

As soon as the emergency is declared, regular laws (including the constitution itself are made inapplicable in the place or places where the emergency exists.

This will enable the Federal Government to operate under the doctrine of necessity to deal with the emergency situation.

According to section 305(3)(b) of the Constitution, the President shall have power to issue a proclamation of a state of emergency only when there is actual breakdown of public order and public safety…. to such extent as to require extra ordinary measures to restore peace and security.

If the truth must be told, the menace of the Boko Haram sect is the greatest calamity that has befallen this country since the end of the civil war in 1970.

It is a known fact that millions of innocent Nigerians have died and are still dying in the hands of Boko Haram, property worth billions of Naira (both public and private) have been destroyed and are still being destroyed by this evil group. Many more have been rendered not only homeless but also left with no means of livelihood.

Millions of children have been orphaned. It is common knowledge that those who managed to escape being killed are relocating in droves to other parts of the country including their states of origin. In places like Borno, Yobe, Kano and Kaduna armed men go about openly murdering defenceless citizens without any body challenging them.

From the grim picture painted above, can it be said that the situation in the troubled states is not dire enough as to require extra ordinary measures to restore peace and security?

The right to acquire and own immovable property any where in Nigeria is a fundamental right guaranteed by Section 43 of the amended 1999 Constitution of Nigeria. But Boko haram has compelled many Nigerians who toiled to acquire property to abandon them and flee in to safety Still the Jonathan administration keeps pretending that all is well.

Instead of taking appropriate measures to stem the tide of insecurity in Nigeria, the Jonathan administration is deceiving itself by claiming that extant laws are inadequate to deal with the situation. The problem as earlier pointed out is not the inadequacy or non existence of laws. The problem is that the Jonathan administration is for purely political and selfish reasons unwilling to deal with the situation.

The Boko Haram sect has no known grievance against the state. What, then, is the basis of the dialogue which the federal Government is proposing to enter in to with the group.

I, therefore, respectfully disagree with the Nigerian Bar Association and other groups and individuals who are urging the Federal Government to dialogue with the dreaded group.

If the federal Government accedes to the request of those calling for dialogue, a dangerous precedent would have been set in that another criminal gang could emerge in the future and start disturbing the whole country in the hope that it will also be invited for dialogue.